Our private client solicitors will tell you that enquiries are rising about whether Wills can be challenged by family members and loved ones. In this blog we look at the grounds for contesting a Will.
Can I contest a Will?
When a family member passes away it is a difficult time. Your grief and distress can be increased if you don’t think that your loved one’s Will is correct. If that is the case, then it is best to take legal advice on the Will and whether you have the grounds to contest it. Our contesting a Will solicitors provide discreet, sensitive advice about your options.
What are the grounds for contesting a Will?
You may be able to contest a Will if:
- The Will maker lacked testamentary capacity or
- The Will was not executed properly or
- The Will maker was unduly influenced to make the Will or
- The Will was fraudulent or forged.
In addition, if you’ve been left out of a Will or you haven’t been left as much as you need and you were dependant on the deceased, you may be able to bring a claim against the estate. This is different to challenging a Will on the above grounds.
Contesting a Will because of lack of testamentary capacity
If the Will maker signed their Will at a time when they had lost their mental capacity to manage their own affairs (referred to as a lack of testamentary capacity by contesting a Will solicitors) then their Will isn’t valid. That’s because you must have testamentary capacity in order to make or change your Will.
Loss of mental or testamentary capacity means that the Will maker didn’t have the mental ability to understand what they were doing when they signed their Will and the impact that their actions would have on their estate. If the person executing the Will doesn’t have mental capacity at the time that their Will is executed then, if the Will is successfully challenged, the estate will pass and be administered in accordance with their most recent valid Will instead. If the deceased hadn’t made an earlier Will then their estate will be divided under the rules of intestacy. It is therefore important to understand what would happen to the deceased’s estate if a Will is challenged as intestacy rules can produce unexpected results.
Contesting a Will because the Will wasn’t executed properly
A Will may not have been executed properly as it wasn’t signed by the Will maker or their signature wasn’t properly witnessed by two witnesses. As a result of the Covid-19 pandemic the government has introduced temporary remote witnessing of Wills if certain criteria are met. That has raised additional concerns if the Will maker is vulnerable. If the Will wasn’t executed properly then the Will is invalid and the deceased’s estate will pass in accordance with any earlier validly executed Will or, if there is no earlier valid Will, under intestacy rules.
Contesting the Will because the Will maker was unduly influenced to make the Will
If the Will maker was under undue influence or was pressured or coerced into making a Will then the Will may be invalid. There may be a red flag over whether there was undue influence if the deceased was elderly or vulnerable and left their estate to someone they only met shortly prior to their death and the deceased had always said that they would leave their estate to family members or friends. Any challenge to a Will on the basis of undue influence has to carefully look at what evidence there is of undue influence, other than suspicion on the family member’s part, because to contest a Will on the basis of undue influence you need to be able to say that the deceased would not have made the legacy in the Will without being subject to coercion or undue influence.
Contesting a Will because the Will was fraudulent or forged
If a Will is fraudulent or forged then it is invalid. Examples include forging the Will maker’s signature to make sure the Will is executed or destroying a Will so that an earlier Will is thought to be the valid Will or because under intestacy rules the fraudulent person will get the lion’s share of the estate.
Should I contest a Will?
If you want to contest a Will on one of the above grounds because you have concerns about a Will then it is best to take legal advice. That is because challenging a Will can create tensions between family members or bad feeling. A contesting a Will solicitor can assess the grounds for challenging the Will, the evidence and your options.
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How do you contest a Will?
If you want to contest a Will it is important to take action and obtain legal advice as soon as you are able to do so. That’s because there are time limits to contest a Will. For example, if you are bringing a claim as a dependant of the deceased the time limit is six months from the issue of the grant of probate.
If you decide to contest a Will then you can make a claim, referred to as a ‘caveat’, to the Probate Registry office. The claim means that the probate won’t be completed and therefore the estate won’t be distributed without your being notified and able to pursue the claim. The caveat lasts for six months but can be renewed if an extension is justifiable.
If during the period of the caveat you are not able to resolve the Will dispute by agreement then you have the option of starting court proceedings to contest the Will. When determining the application the court will weigh up all the evidence and that’s why it is best to take specialist legal advice before starting the litigation. That way you can make informed choices on whether pursuing the court case is in your best interests.
Our Private Client and Contesting a Will Solicitors
Deciding whether or not to challenge a Will isn’t an easy decision to make. For sensitive, pragmatic help contesting a Will call Chris Strogen at Evolve Family Law or complete our online enquiry form.
Our offices in Holmes Chapel, Cheshire and Whitefield, Manchester are open for face to face meetings, however an appointment is required. We also offer remote meetings by appointment by video call or telephone for those who prefer not to travel.